from the fleeting-copies dept

Video game company Blizzard often appears to be a study in contrasts. At times, it seems to recognize the changing nature of the technology landscape, embracing scarcities, giving people reasons to buy and even coming out against DRM. But, at the same time, it tried to retroactively ban anonymity in its forums, and has been notoriously litigious, even going after organizations who promote its games.

However, perhaps the most troubling (and highest profile) issue involving Blizzard is its lawsuit against a guy who made a bot for doing things within World of Warcraft. While we recognize that such things can be used to "cheat," the problem was Blizzard's attempt (successful so far) to drastically stretch the meaning and intent of copyright law, to suggest that making such a bot infringes on its copyright. Beyond the basic questions of how the decision in the case was at odds with the basic concepts of the First Sale doctrine, the real problem was that nothing the bot does actually violates copyright law. The judge had to seriously twist both the letter and spirit of copyright law to come to that conclusion (and if you don't want my analysis on it, try copyright expert William Patry's, who noted):

The critical point is that WoWGilder did not contributorily or vicariously lead to violating any rights granted under the Copyright Act. Unlike speed-up kits, there was no creation of an unauthorized derivative work, nor was a copy made even under the Ninth Circuit's misinterpretation of RAM copying in the MAI v. Peak case. How one might ask can there be a violation of the Copyright Act if no rights granted under the Act have been violated? Good question.

To get to its result, the court had to first find that WoW, even though sold over the counter, was licensed not sold. In so finding, the court declined to follow the recent Vernor opinion in the Western District of Washington, believing it had to follow other Ninth Circuit precedent. I agree with the Vernor court that the other precedent (MAI, Triad, Wall Data) do not hold that over the counter software is licensed, not sold. (WoW may be purchased online too, but I don't think this changes the analysis.). Having found there was license not a sale, there still had to be a breach of the license in order to permit an infringement action to lie, and recall here that the claim is not one for direct infringement, but rather secondary liability; there was no privity between the parties. There was in fact no provision in the license that barred use of WoWGlider. The court took the extraordinary step of stitching together two unrelated provisions to create one. You have to read it to believe it, but it took the court 8 pages to go through this hard work, and why? Was the court offended by what it regarded to be cheating? If so, God help us if law is being reduced to such subjective, non-statutory grounds.

While the appeal in that case is still ongoing, it appears that Blizzard is using that precedent to go after more folks who have made tools for "cheating." The company recently banned thousands of players from Starcraft II for allegedly using such cheat codes, but reader Jay was the first of a bunch of you to point out that it's also suing three creators of cheat codes using the same dubious claims of copyright infringement.

Now, let me make it quite clear: I completely understand why Blizzard and many players of Blizzard games hate cheat codes and find them unfair and damaging to the overall gameplay. However, even if you think such cheats and hacks are the most evil thing out there, you have to admit that it's no excuse to misuse copyright law to punish the makers of those cheats, knowing that the end result could be precedent that negatively impacts all sorts of other things online. So what is Blizzard claiming specifically? Well, to make this a "copyright" issue, they're claiming that:

When users of the Hacks download, install, and use the Hacks, they copy StarCraft II copyrighted content into their computer's RAM in excess of the scope of their limited license, as set forth in the EULA and ToU, and create derivative works of StarCraft II.

Pick apart that sentence carefully. In order to make this a copyright issue, Blizzard is claiming that (1) running a cheat code violates the EULA and the ToU (the fine print no one read) and (2) once you've violated the EULA and the terms of service, you no longer have a license for the game ("excess of the scope of their limited license") and, because of that (3) when you copy aspects of the game in a fleeting manner into the computer's RAM, it violates the copyright.

Hopefully, you can see how problematic this is. Thankfully, for now, other cases (in a different circuit, I believe, so non-binding on the Blizzard cases) have found that fleeting copies in RAM are not considered infringing, and hopefully the courts here agree, and toss out this kind of tortured logic that could lead to all sorts of other ridiculous rulings. If Blizzard is allowed to make these claims, then any software/content company that offers you a long license, where you don't obey each and every claim, can say you've infringed on their copyright and owe huge statutory damages.

"You have to read it to believe it, but it took the court 8 pages to go through this hard work, and why? Was the court offended by what it regarded to be cheating? If so, God help us if law is being reduced to such subjective, non-statutory grounds."

It just means the court has a WoW account and he's had enough with the cheaters using WoWGlider to beat him in everything.

When lawyers meet tech...

Maybe the lawyers had a hard time with a sensible way of legally combating cheat software for Starcraft II(SC II). It is also known as "maphacks" in the Starcraft II community. It modifies the running software to give a player an unfair advantage in online gaming situation. Copyright claims might by dubious but give that information on the very basic operation of a SC II hack to any lawyer he/she most likely conjure up the legal theory in the frame of Copyright Law.

Re: Re: BOT-swana!

That's very specist of you!

Maybe some games were made for bots to play and enjoy! Just because a bot doesn't enjoy mentally challenging activity doesn't mean there is anything wrong with its processor--er, I mean, brain!! Please try to show some species sensitivity (to set a good example--for the children).

Re: Fleeting Copies

"if you steam any kind of web content that is "infringing" (think youtube) then you are making such fleeting copies and would be guilty of copyright infringement as well."

And if you stream those videos in certain operating systems, the video is actually downloaded to the '/tmp' folder. it's not even a fleeting copy, its a download (one that is erased when you leave the page). Copying that file to a another folder, where it will not disappear when you leave the page, is trivial.

So, is watching a video in linux infringement?

Or are the powers that be going to admit that computers need to copy things to function, and treating bits as if they were atoms is just stupid?

Re:

Re: Re: Re:

No, but I wouldn't buy a bike and then buy a robot to ride the bike for me so I don't have to bother with it. If a leisure activity is boring or unpleasant enough to want to find a way to not do it... why not just find something more fun to do, rather than finding a computer program to do the activity for you?

Re: Fleeting Copies

Actually as far as I know that very thing has come up in Canadian courts. Our silly levee system has created a dumb legal contradiction whereby infringing media is acceptable if and only if it is stored on a CD (which has a levee here) but not a DVD, hard drive, flash drive or iPod (all of which don't).

So that, of course, raised the question of if it's okay to download a file and immediately transfer it to CD - which currently is considered legal here. But since the file is first on your hard drive, it creates a grey area where you are infringing and then no longer infringing. Of course that leads to your question: what about media that is streamed and only exists in RAM or a temporary file? At the moment, we don't have a clear answer on that one...

(it's possible - nay, likely - that I've gotten some details wrong. I'm trying to find the sources I originally had on this to no avail, so if anyone can correct or clarify what I've said please do...)

Re: Re:

I somewhat agree, with a caveat for the creator of a bot. I can totally see the appeal of trying to devise rudimentary AIs that can compete with human players in a popular game - and it seems like it would be a challenging endeavour.

Re: Don't blame blizzard.

"the fault lies solely on the judges."

No.

Should they even bother ruling in such an apparently frivolously constructed case? No they shouldn't, but that doesn't place blame SOLELY on their shoulders.
For example, when I was a kid and my brother hit me, I hit him back, and he went and cried to Mom, who subsequently punished me, was my mom SOLELY to blame? Or should my brother have been taught some manners as well?

Re: Re: (the fine print no one read)

Re: Re:

Most bots in World of Warcraft do not actually play the game per say. They are used by gold farmers who then work the game to make money off of it. I don't think there is a bot that can handle the truly challenging aspects of the game.

One issues that I have never understood is why any court of law thought that there was any level or reasonableness to bringing cheaters of a game(or the creators of the cheat software) into a courtroom. We are talking about a game, of which has no bearing on real life, in any way, shape, or form, and seeing how there are far more important issues that our courts should be dealing with, the courts should have told Blizzard to go fuck themselves.

Beyond that, it is high time that the courts stop siding with companies and these "shrink-wrap EULAs and ToS". It is time to start realizing that the customers OWN the software that we purchase(which we do) and not that companies are "licensing" the software we pay for, to us. Companies are taking too many liberties today, and the U.S. Government, as well as state governments, are letting them do this.

I really enjoy Blizzard games, but I am to the point that I will never give Blizzard another dime. Until everyone else that is against their actions does this, then nothing will change. Everyone that continues to give them money has no right to complain, until they stop giving them support.

Another point of contention - Bobby Kotick

Thing is, if you look up Kotick, you'll notice that he is demonized for quite a few reasons. 1) He finds ways to monetize everything he gets his hands on. 2) How he runs the video game business is basically sequel upon sequel upon sequel. 3) The infamous "taking fun out of games" speech (September 15, 2009)

Rather than demonize Kotick further, I just leave it to you all to read about him yourselves.

Re: Re: (the fine print no one read)

Verbal agreements aren't legally binding in the U.S.

Yes they are. Verbal agreements may be tougher to enforce, and there are some issues related to them, but if you can substantiate the agreement, and the verbal agreement has the elements of a contract, it's absolutely legally binding in the US.

Its madness

Well EULA and TOC are stupid anyway, you can't run software until your have accepted them, but hey you also can't return the software if you don't agree to them as most companies especally the online purchases do not allow refunds for purchases.
So my issue is how can you enforce a rule set or licence if you have no other choice but to accept it or be out of pocket? It's all one way!

Re: Re: Don't blame blizzard.

Ah but if they want to keep their play base growing, and continue to make money off the game. They don't want people to start hating the game, because it's unplayable with all the bots, gold farmers, etc... They have to do what ever is necessary to keep that income flowing.

Honestly would you really want to play another game from the same company if you played a previous game, and it went to crap? All because the developer wouldn't listen to the player base when they were unhappy. When it comes to video game the ones that listen to its customers, and make the changes are they ones who keeps making games people want to play.

Re: Re: (the fine print no one read)

Re: Re: Fleeting Copies

Even physical stuff needs copies to function. When you read a magazine, for instance, its information content is constantly being copied into photons, which then strike your eyes and are copied into electrochemical signals in your nervous system.

Copyright should protect those guys, not hurt them.

It's just another sign of how badly out of sync copyright law and technology are. The original purpose of the Copyright Act is a distant memory at this point: companies use it to prop up all kinds of bad business (and game) models. There's always a copy somewhere and, more importantly, you don't need to show damages.

That's the real scary part. Blizzard doesn't need to show that Glider or the SC2 radar or any of those products hurt them. Amend the EULA, file paperwork, seek huge statutory damages.

It's particularly obvious in the SC2 radar because the tools are all open source: Blizzard is using the Copyright Act to *prevent* the free flow of perfectly legal (sans EULA, authored by Blizzard) creative work. It doesn't get any more disgusting than that.

Disclaimer: I am very biased in this case, as easily noted by my name.

Re: Re: Re: Re:

Granted I have never played WoW (hate the idea of pay monthly games), the reason people would do that is to skip the leveling up part to go straight to high end dungeons, which are generally more entertaining.

Re: Re: Re: Re:

If a leisure activity is boring or unpleasant enough to want to find a way to not do it... why not just find something more fun to do, rather than finding a computer program to do the activity for you?

Re: Re: Re: Re: Re:

That still points to a flawed game. Basically you're saying "only the beginning part is stupid and boring, not the whole thing." Not that I care mind you, if people use bots. I just look for games that are actually fun to play all the way through.

The district court opinion in Vernor, which both your post and Patry's refer to, was recently reversed by the 9th Circuit. While that doesn't drastically change the Wowglider case (where the court rejected the Vernor view anyway), or make Blizzard's actions any better, it may have some bearing on Blizzard's strategy.

Vernor has a huge effect on MDY v Blizzard, actually.

Since the meat of their (er, my) copyright defense hinged on section 117 of the Copyright Act: one cannot infringe copyright in a piece of software by copying it to RAM if that copy is an essential step in using the software. This applies to an "owner of a copy", just like section 109 with regards to selling.

However, Vernor's precedent will probably mean that WoW customers do not own their copies of the game and thus are not protected by section 117. This is deeply troubling for any integration with shrink-wrap software, as it means the developers of the software can turn add-on developers into copyright infringers with the stroke of a pen.

Re: Re: Re: Re: Re: Re:

You have a valid point. I do not think I have ever played any type of MMO that was fun all the way through except Guild Wars. And friends have loaned me accounts (to try to get me to sign up) or I have watched them play quite a few MMOs.

I think you forgot to mention in your "article" that the creators of these hacks were selling them for money. It's no different than selling bootleg movies, it's copyright infringement,they are not suing these people for screwing with ram (even though that was such a huge part of your article) So before you go and post something stupid on the internet again, make sure you got everything together before you start talking out the side of your neck.